By Notice of Appeal filed on 11 February 2011, Mrs Krum (“the appellant”) challenged orders made by Harman FM on 18 January 2011 in parenting proceedings between the appellant and Mr Krum (“the respondent”). The appeal has been called on before the Court this morning. The appeal having been called on, Counsel for all parties invited the Court to make orders by consent allowing the appeal and remitting parenting proceedings for re-hearing before a Federal Magistrate other than Harman FM. The Independent Children’s Lawyer (“the ICL”) joins in the consent orders.
Sensibly, in the Court’s view, given that this Court would not be in a position to properly or judicially determine any living arrangements by way of alternative to those provided for in the impugned orders of the Federal Magistrate, the parties invite the Court to continue as, in effect, interim orders, orders 2 to 14 inclusive of the orders of the Federal Magistrates Court of 18 January 2011.
The matter which does require the Court’s consideration, or requires the Court’s particular consideration, is the request by all parties for certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the appeal and the re-hearing which will result from the Court allowing the appeal.
As is not in doubt, although the appeal has been called on before the Court, it has not been heard and determined on its merits. The submission of all parties, articulated by Counsel for the appellant, in reality is that this appeal, had it been agitated and determined by the Full Court, would inevitably have been allowed. The Court accepts that contention. There may have been a number of bases upon which the appeal could have been successful. It is unnecessary to speculate about that because, in the Court’s view, there is one matter by virtue of which success would have been inevitable. Sensibly, in the Court’s view, the respondent to the appeal and the ICL accept that this is the case.
In his summary of arguments and list of authorities filed on 14 March 2011 Counsel for the appellant articulated the argument which, with respect to the Federal Magistrate, would in this Court’s view have been irresistible had it been necessary to determine this appeal on its merits. At paragraphs 5 to 15 of his submissions, Counsel for the appellant cogently articulated a basis upon which this Court would undoubtedly have intervened had it been necessary for it to do so.
In the circumstances, the question arises why should parties who have had the good sense to recognise appealable error where it was manifest be penalised by not receiving costs certificates in circumstances where they would have had they not sensibly agreed to resolve the appeal and move towards a re-hearing of the proceedings. Fortunately for this Court this situation has arisen previously and in the highest Court in the land. Justice Kirby, in Cramer v Davies (1997) 72 ALJR 146, addressed this very issue and accepted that in circumstances such as have arisen in this case it was appropriate to exercise the discretion to grant costs certificates.
The Full Court of this Court has, as have other intermediate appeal courts, followed Kirby J’s wisdom on numerous occasions. In 12 years on the Full Court I am able to recall, without reference to the name of any particular case, at least a score of occasions when we have, in reliance upon Kirby J’s wise words, granted cost certificates in situations such as the present. For those brief and not particularly coherent reasons the Court will grant the parties the costs certificates which they have sought.